Preview
FILED: ORANGE COUNTY CLERK 05/04/2022 12:42 PM INDEX NO. EF005199-2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
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LAURIE HAFNER, Index No.: EF005199-2021
Plaintiff, VERIFIED BILL OF
PARTICULARS AS TO
-against- AFFIRMATIVE DEFENSES
HOMEPRO EXTERIORS INC. and OMAR
RAMOS MENDOZA,
Defendants.
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PLEASE TAKE NOTICE that defendants, HOMEPRO EXTERIORS INC. and OMAR
RAMOS MENDOZA by their attorneys, MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, as
and for a Response to Plaintiff’s Demand for a Verified Bill of Particulars as to Affirmative
Defenses, dated February 2, 2022, set forth the following, upon information and belief:
1. This information is included in the Police Accident Report. Defendant Homepro
Exteriors Inc. maintains a principal place of business located at 541 Route 17M, Middletown, NY
10940. Defendant Omar Ramos Mendoza, who is employed by defendant Homepro Exteriors Inc.,
resides at 421 South Street, Newburgh, NY 12550.
2. Culpable Conduct: The acts or omissions claimed to constitute the alleged
culpable conduct, fault, negligence, recklessness, carelessness, assumption of risk and/or acts of
omission or commission on the part of plaintiff were the following: she failed to exercise that
degree of care which a reasonably prudent person of her years, experience, intelligence and
development would have exercised under the circumstances; she knew or should have known of
the risks involved in her actions; she failed to observe the conditions of the area where the incident
allegedly occurred; she failed to act as an ordinary and reasonably prudent person under the
conditions then and there existing; she failed to exercise reasonable care and caution under the
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circumstances then and there existing; she knew or should have known of the risks involved in her
actions and failed to avoid same; she acted in a negligent manner and thereby assumed the risks of
her actions; she failed to observe the observable; she failed to take heed of conditions which were
obvious and which she observed on multiple occasions prior to the alleged occurrence; she failed
to exercise reasonable care to avoid all known and/or unknown dangers which ordinary prudence
required her to anticipate; she was otherwise negligent in acting in a careless, reckless and
negligent manner without due regard to her/his own health, safety and well-being.
a. Plaintiff’s culpable conduct occurred at the time and location asserted by plaintiff
in the Verified Complaint and Verified Bill of Particulars.
3. See response to paragraph 2, above.
4. Other Persons Liable: Objection. Discovery in this action has not yet been
completed. At this juncture, the depositions of all parties remain outstanding. Defendants do not
possess sufficient information regarding plaintiff’s claims to determine the necessary parties, if
any, that plaintiff failed to name. As such, defendants reserve their right to supplement this
response, and this demand is premature.
5. Defendants object to this demand as it calls for ultimate conclusions of law and
fact. Further, defendants object to this demand to the extent it is vague, overly broad, and is
evidentiary in nature and inappropriate for a Bill of Particulars. Notwithstanding this objection,
and without waiving same, a jury will determine which of and to what extent plaintiff’s alleged
injuries and/or damages were caused/contributed to by plaintiff’s culpable conduct, assumption of
risk, comparative negligence and/or contributory negligence.
6. See response to paragraph 4, above.
7. See response to paragraph 5, above.
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8. Objection. Discovery in this action has not yet been completed. At this juncture,
the depositions of all parties remain outstanding. As such, defendants reserve their right to
supplement this response, and this demand is premature.
9. Notice of Condition: Objection. Discovery in this action has not yet been
completed. At this juncture, the depositions of all parties remain outstanding. As such, defendants
reserve their right to supplement this response, and this demand is premature.
10. Violation of Laws: Defendants hereby object to this demand as it seeks a legal
conclusion. Defendants will ask the Court to take judicial notice of all applicable laws, statutes
and regulations.
11-13. Seat Belts: Objection. Discovery in this action has not yet been completed. At this
juncture, the depositions of all parties remain outstanding. As such, defendants reserve their rights
to supplement this response, and this demand is premature. Notwithstanding the foregoing
objections, it is alleged that plaintiff was either not wearing, or was improperly wearing, a seatbelt
and/or restraining device at the time of the occurrence. Had the seatbelt and/or restraining device
been utilized in a proper, prudent and reasonable manner, the alleged injuries of plaintiff would
have been substantially reduced or would not have occurred. Any and/or all of the injuries and
damages that plaintiff alleges to have sustained as a result of the happening of the occurrence
herein were either caused and/or exacerbated by her failure to wear and/or her improper use of
available restraining devices. Plaintiff failed to use and/or misused available seatbelts in
accordance with the manufacturer's recommended procedures. Had the available seatbelts been
utilized in a proper, prudent and reasonable manner, the alleged injuries of plaintiff would have
been substantially reduced or not have occurred. Therefore, pursuant to CPLR 1411, plaintiff’s
damages shall be diminished in proportion to the culpable conduct of plaintiff.
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14. Assumption of Risk: For a general statement of the acts and/or omissions
constituting plaintiff’s assumption of risk, see response to paragraph 2, above.
a. For a general statement of the acts and/or omissions constituting plaintiff’s
assumption of risk, see response to paragraph 2, above.
b. Plaintiff’s assumption of risk occurred at the time and location asserted by plaintiff
in the Verified Complaint and plaintiff’s Verified Bill of Particulars.
c. See response to paragraph 5, above.
PLEASE TAKE FURTHER NOTICE that defendants HOMEPRO EXTERIORS INC.
and OMAR RAMOS MENDOZA reserve the right to supplement and/or amend the above
responses pursuant to all applicable rules of discovery up to and including the time of trial.
Dated: Purchase, New York
May 4, 2022
MILBER MAKRIS PLOUSADIS
& SEIDEN, LLP
By:___________________________
Christopher J. Flynn
Attorneys for Defendants
Homepro Exteriors Inc. and
Omar Ramos Mendoza
100 Manhattanville Road, Suite 4E20
Purchase, New York 10577
(914) 231-8018
cflynn@milbermakris.com
File No.: 388-21367
TO: Maria Zambrano Steinhaus, Esq.
SURIS & ASSOCIATES, P.C.
Attorneys for Plaintiff
395 North Service Road, Suite 302
Melville, New York 11747
(631) 423-9700
File No.: 4027891LE
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ATTORNEY VERIFICATION
CHRISTOPHER FLYNN verifies that:
1. I am an attorney admitted to practice in the Courts of New York State.
2 I am the attorney for the defendants, Homepro Exteriors Inc. and Omar Ramos
Mendoza, relative to the above action.
3. I have read the foregoing Verified Bill of Particulars as to Affirmative Defenses
and know the content thereof; that the same is true to my own knowledge, except as to the matters
therein stated to be alleged on information and belief, and as to those matters, I believe them to be
true.
4. I make this verification instead of defendants, Homepro Exteriors Inc. and Omar
Ramos Mendoza, because these defendants do not maintain offices and are not otherwise located
within the county where my office is located. My belief as to all matters not stated upon my
personal knowledge is derived from my review of reports, memoranda and investigation materials
contained in my legal file and upon discussions with the defendant.
5. I affirm that the foregoing statements are true, under the penalties of perjury.
Dated: Purchase, New York
May 4, 2022
____________________________
Christopher Flynn
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Preview
FILED: ORANGE COUNTY CLERK 05/04/2022 12:42 PM INDEX NO. EF005199-2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE ----------------------------------------------------------------X LAURIE HAFNER, Index No.: EF005199-2021 Plaintiff, VERIFIED BILL OF PARTICULARS AS TO -against- AFFIRMATIVE DEFENSES HOMEPRO EXTERIORS INC. and OMAR RAMOS MENDOZA, Defendants. ----------------------------------------------------------------X PLEASE TAKE NOTICE that defendants, HOMEPRO EXTERIORS INC. and OMAR RAMOS MENDOZA by their attorneys, MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, as and for a Response to Plaintiff’s Demand for a Verified Bill of Particulars as to Affirmative Defenses, dated February 2, 2022, set forth the following, upon information and belief: 1. This information is included in the Police Accident Report. Defendant Homepro Exteriors Inc. maintains a principal place of business located at 541 Route 17M, Middletown, NY 10940. Defendant Omar Ramos Mendoza, who is employed by defendant Homepro Exteriors Inc., resides at 421 South Street, Newburgh, NY 12550. 2. Culpable Conduct: The acts or omissions claimed to constitute the alleged culpable conduct, fault, negligence, recklessness, carelessness, assumption of risk and/or acts of omission or commission on the part of plaintiff were the following: she failed to exercise that degree of care which a reasonably prudent person of her years, experience, intelligence and development would have exercised under the circumstances; she knew or should have known of the risks involved in her actions; she failed to observe the conditions of the area where the incident allegedly occurred; she failed to act as an ordinary and reasonably prudent person under the conditions then and there existing; she failed to exercise reasonable care and caution under the 1 of 5 FILED: ORANGE COUNTY CLERK 05/04/2022 12:42 PM INDEX NO. EF005199-2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2022 circumstances then and there existing; she knew or should have known of the risks involved in her actions and failed to avoid same; she acted in a negligent manner and thereby assumed the risks of her actions; she failed to observe the observable; she failed to take heed of conditions which were obvious and which she observed on multiple occasions prior to the alleged occurrence; she failed to exercise reasonable care to avoid all known and/or unknown dangers which ordinary prudence required her to anticipate; she was otherwise negligent in acting in a careless, reckless and negligent manner without due regard to her/his own health, safety and well-being. a. Plaintiff’s culpable conduct occurred at the time and location asserted by plaintiff in the Verified Complaint and Verified Bill of Particulars. 3. See response to paragraph 2, above. 4. Other Persons Liable: Objection. Discovery in this action has not yet been completed. At this juncture, the depositions of all parties remain outstanding. Defendants do not possess sufficient information regarding plaintiff’s claims to determine the necessary parties, if any, that plaintiff failed to name. As such, defendants reserve their right to supplement this response, and this demand is premature. 5. Defendants object to this demand as it calls for ultimate conclusions of law and fact. Further, defendants object to this demand to the extent it is vague, overly broad, and is evidentiary in nature and inappropriate for a Bill of Particulars. Notwithstanding this objection, and without waiving same, a jury will determine which of and to what extent plaintiff’s alleged injuries and/or damages were caused/contributed to by plaintiff’s culpable conduct, assumption of risk, comparative negligence and/or contributory negligence. 6. See response to paragraph 4, above. 7. See response to paragraph 5, above. 2 of 5 FILED: ORANGE COUNTY CLERK 05/04/2022 12:42 PM INDEX NO. EF005199-2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2022 8. Objection. Discovery in this action has not yet been completed. At this juncture, the depositions of all parties remain outstanding. As such, defendants reserve their right to supplement this response, and this demand is premature. 9. Notice of Condition: Objection. Discovery in this action has not yet been completed. At this juncture, the depositions of all parties remain outstanding. As such, defendants reserve their right to supplement this response, and this demand is premature. 10. Violation of Laws: Defendants hereby object to this demand as it seeks a legal conclusion. Defendants will ask the Court to take judicial notice of all applicable laws, statutes and regulations. 11-13. Seat Belts: Objection. Discovery in this action has not yet been completed. At this juncture, the depositions of all parties remain outstanding. As such, defendants reserve their rights to supplement this response, and this demand is premature. Notwithstanding the foregoing objections, it is alleged that plaintiff was either not wearing, or was improperly wearing, a seatbelt and/or restraining device at the time of the occurrence. Had the seatbelt and/or restraining device been utilized in a proper, prudent and reasonable manner, the alleged injuries of plaintiff would have been substantially reduced or would not have occurred. Any and/or all of the injuries and damages that plaintiff alleges to have sustained as a result of the happening of the occurrence herein were either caused and/or exacerbated by her failure to wear and/or her improper use of available restraining devices. Plaintiff failed to use and/or misused available seatbelts in accordance with the manufacturer's recommended procedures. Had the available seatbelts been utilized in a proper, prudent and reasonable manner, the alleged injuries of plaintiff would have been substantially reduced or not have occurred. Therefore, pursuant to CPLR 1411, plaintiff’s damages shall be diminished in proportion to the culpable conduct of plaintiff. 3 of 5 FILED: ORANGE COUNTY CLERK 05/04/2022 12:42 PM INDEX NO. EF005199-2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2022 14. Assumption of Risk: For a general statement of the acts and/or omissions constituting plaintiff’s assumption of risk, see response to paragraph 2, above. a. For a general statement of the acts and/or omissions constituting plaintiff’s assumption of risk, see response to paragraph 2, above. b. Plaintiff’s assumption of risk occurred at the time and location asserted by plaintiff in the Verified Complaint and plaintiff’s Verified Bill of Particulars. c. See response to paragraph 5, above. PLEASE TAKE FURTHER NOTICE that defendants HOMEPRO EXTERIORS INC. and OMAR RAMOS MENDOZA reserve the right to supplement and/or amend the above responses pursuant to all applicable rules of discovery up to and including the time of trial. Dated: Purchase, New York May 4, 2022 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP By:___________________________ Christopher J. Flynn Attorneys for Defendants Homepro Exteriors Inc. and Omar Ramos Mendoza 100 Manhattanville Road, Suite 4E20 Purchase, New York 10577 (914) 231-8018 cflynn@milbermakris.com File No.: 388-21367 TO: Maria Zambrano Steinhaus, Esq. SURIS & ASSOCIATES, P.C. Attorneys for Plaintiff 395 North Service Road, Suite 302 Melville, New York 11747 (631) 423-9700 File No.: 4027891LE 4 of 5 FILED: ORANGE COUNTY CLERK 05/04/2022 12:42 PM INDEX NO. EF005199-2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/04/2022 ATTORNEY VERIFICATION CHRISTOPHER FLYNN verifies that: 1. I am an attorney admitted to practice in the Courts of New York State. 2 I am the attorney for the defendants, Homepro Exteriors Inc. and Omar Ramos Mendoza, relative to the above action. 3. I have read the foregoing Verified Bill of Particulars as to Affirmative Defenses and know the content thereof; that the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. 4. I make this verification instead of defendants, Homepro Exteriors Inc. and Omar Ramos Mendoza, because these defendants do not maintain offices and are not otherwise located within the county where my office is located. My belief as to all matters not stated upon my personal knowledge is derived from my review of reports, memoranda and investigation materials contained in my legal file and upon discussions with the defendant. 5. I affirm that the foregoing statements are true, under the penalties of perjury. Dated: Purchase, New York May 4, 2022 ____________________________ Christopher Flynn 5 of 5